PDF
Version
United States Department of Labor
Employees’ Compensation Appeals Board
|
__________________________________________
J.S., widow of G.A,
Appellant
and
DEPARTMENT OF
LABOR, OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION, Denver, CO Employer
__________________________________________
|
)
)
)
)
)
)
)
)
)
|
Docket No. 08-373
Issued: November 4,
2008
|
Appearances: Case
Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS,
Chief Judge
MICHAEL E. GROOM,
Alternate Judge
JAMES A. HAYNES,
Alternate Judge
JURISDICTION
On November 13, 2007
appellant filed a timely appeal from the Office of Workers’ Compensation
Programs’ merit decision dated August 30, 2007 denying the employee’s claim
for compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3, the Board
has jurisdiction over the merits of this case.
ISSUE
The issue is whether the
employee sustained colon cancer or a respiratory condition causally related to
his federal employment.
FACTUAL HISTORY
On January 27, 2005 the
employee, a 45-year-old safety specialist, filed an occupational disease claim
alleging that he sustained colon cancer causally related to his federal
employment. In an accompanying statement, he reported that on March 2,
2001 he inspected a medical waste-treatment facility where he was exposed to
chemical fumes and developed mouth lesions and had gastrointestinal bleeding. The
employee also stated that during the week of Thanksgiving 2001 he worked at the
World Trade Center (WTC), where he was exposed to carcinogens and developed
additional gastrointestinal bleeding. In a June 25, 2005
statement, he alleged that he was exposed to high levels of asbestos while
working at the WTC site. The employee began to experience rectal bleeding in
the spring of 2001, but an August 15, 2001 colonoscopy was negative. He
submitted an Environmental Protection Agency (EPA) documents regarding asbestos
sampling data for the WTC.
With respect to the medical
evidence, the employee provided a hospital discharge report dated January 21,
2005, which diagnosed colon cancer based on a computerized tomography scan. In
an undated report received by the Office on March 15, 2005, Dr. Daniel
Teitelbaum, a toxicologist, noted that the employee had performed inspections
of facilities with toxic materials and had been at the WTC after
September 11, 2001. He stated that it was recognized that colon
cancer was increased in individuals with exposure to asbestos. Dr. Teitelbaum
opined that it “seems reasonable to me that there is a significant likelihood
that asbestos exposure at the WTC site had a promotional influence on what may
have been a latent colon cancer.” By report dated May 25, 2005, Dr. Christopher
Gonzalez stated that based on his review of medical records, the employee’s colon
cancer was Stage 1 as of November 2001.
The Office prepared a
statement of accepted facts and referred the employee for second opinion
examinations. In a report dated September 12, 2005, Dr. Nuray Bilir,
a gastroenterologist, provided a history and results on examination. He
indicated that the employee had an early presentation of colon cancer and
asbestos had been found to be associated with an increased risk of colon
cancer. Dr. Bilir opined asbestos “might have contributed to his colon
cancer formation.” In a report dated November 15, 2005, he stated that,
while the medical literature did not show direct evidence of a cause and effect
relationship, there was enough evidence to raise a suspicion of causal relationship
and it could not be ruled out in the employee’s case. In a December 9,
2005 report, Dr. Bilir stated that it was “with reasonable medical
probability that the claimant’s work-related asbestos exposure contributed to
the claimant’s colon cancer.”
The employee was also seen for
second opinion examination by Dr. Scott Phillips, a toxicologist. In a
report dated October 10, 2005, Dr. Phillips provided a history and
results on examination. Based on his review of medical records and scientific
literature, there was no evidence to support causation of asbestos with the
employee’s adenocarcinoma of the colon. Dr. Phillips stated that, although
the epidemiologic studies suggested a slightly positive relationship between
colon cancer and asbestos overall, there were other studies that did not
support such an association. He concluded, “On the long latency associated
with solid tumors it would be extraordinarily unlikely for this tumor to have
appeared in such a short time period following exposure. Furthermore, in
studying the scientific literature there is no evidence to support asbestos as
a promot[e]r of adenocarcinoma of the colon or of a progresser for
adenocarcinoma of the colon.”
The Office referred the
employee for an additional second opinion examination by Dr. Jan Gray, an
oncologist. With respect to a colonoscopy in August 2001, Dr. Gray noted
that given the size of the current size of the tumor it would have been too
small for detection in 2001. He stated that there was “no mainline cancer
literature” to support causal relationship between asbestos and colon cancer.
Dr Gray further opined “the exposure to various inhalants required by his job
is not related to the onset of carcinoma of the colon. Unfortunately, he has
eventually terminal metastatic carcinoma of the colon; however, it is unrelated
to environmental exposures as best one can determine. I find no evidence to
support that association.” In a February 16, 2006 report, he stated that he
had reviewed additional medical evidence and his opinion remained unchanged.
By decision dated March 8,
2006, the Office denied the claim for compensation. It stated that the weight
of the medical evidence was represented by Dr. Gray.
The employee requested a
hearing before an Office hearing representative, which was held on
November 6, 2006. Additional medical evidence was submitted. In a
report dated October 12, 2006, Dr. Richard Martin, a pulmonologist, stated
that lung function testing had shown a decrease in forced vital capacity (FVC)
and forced expiratory volume in one second (FEV1) after WTC
exposure. He opined that the exposure had affected lung function. With
respect to colon cancer, Dr. Martin opined that hazardous exposure had
compromised the employee’s immune system, allowing cancer cells to rapidly
expand.
In a report dated October 30,
2006, Dr. Andras Korenyi-Both, a pathologist, stated that the employee
developed Al Eskan disease after exposure to toxic dust at the WTC site. He
opined that the Al Eskan disease promoted his metastatic cancer. In a report
dated November 2, 2006, Dr. Teitelbaum discussed both respiratory
conditions and colon cancer. He stated that there was little doubt that
workers employed in the clean up of the WTC site were exposed to a complex
mixture that was likely to cause respiratory problems. Dr. Teitelbaum
opined that the employee developed occupational asthma as a result of his
employment exposure. With respect to colon cancer, he stated that cancer was a
multi-stage disorder. Dr. Teitelbaum noted that most researchers believe
that asbestos functions as a promoter rather than as a genotoxic material and if
the employee had already developed some of the precursor steps toward a colon
malignancy prior to his work at the WTC, exposure to the aerosol and the
particles such as asbestos, chromium, cadmium and vanadium, would more probably
than not have contributed to the promotion of his colon cancer.
By decision dated
January 19, 2007, the Office hearing representative set aside the
March 8, 2006 decision. The hearing representative found a conflict in
medical opinion arose between second opinions physicians Dr. Gray and
Dr. Phillips and the attending physicians, Drs. Teitelbaum,
Korenyi-Both and Martin, regarding the causal relationship of colon cancer or a
respiratory condition with the federal employment exposures.
The Office referred appellant,
a statement of accepted facts and medical records, to Dr. Thomas Beller, a
pulmonologist, and Dr. Michael Perry, an oncologist. In a report dated
August 21, 2007, Dr. Beller stated that he had reviewed the medical
file and the statement of accepted facts. He noted the employee’s exposure at
the waste treatment plant and the WTC site, finding that asbestos exposure
required a lengthy exposure of months or years before the occurrence of
respiratory disease. Dr. Beller also reported that, while asbestos
exposure can cause respiratory problems, it does not cause asthma or
obstructive pulmonary disease. He stated that the decrease in lung function
was not clinically significant. Dr. Beller concluded that the employee did
not have any diagnosed condition causally related to his federal employment
exposures .
In a report dated August 28,
2007, Dr. Perry also reviewed the relevant evidence. He stated:
“Given the growth
rate of colon cancers (about 90 [to] 100 days) and his 6 [centimeters] tumor at
diagnosis it is unlikely that he had a visible tumor that was missed on the colonoscopy
of 2001. While there is an interaction between mutagen exposure and genetic
constitution at this time we cannot tell whether his exposures contributed in
any way to the development of his colon cancer. He did have a positive family
history in his grandfather with polyps found in his father. I am unaware of
any textbook of oncology that considered asbestos, for example, as a carcinogen
for the development of colorectal cancer.”
Dr. Perry was also asked to
discuss whether employee had a compromised immune system. He opined that there
was no objective evidence of a compromised immune system.
By decision dated August 30,
2007, the Office denied the claim for compensation. It found that the weight
of the evidence was represented by Drs. Beller and Perry and did not establish
colon cancer or a respiratory condition as employment related.
LEGAL PRECEDENT
A claimant seeking benefits
under the Federal Employees’ Compensation Act has the burden of
establishing the essential elements of his claim by the weight of the reliable,
probative and substantial evidence, including that an injury was sustained in
the performance of duty as alleged and that any specific condition or
disability claimed is causally related to the employment injury.
To establish that an injury
was sustained in the performance of duty, a claimant must submit: (1) medical
evidence establishing the presence or existence of the disease or condition for
which compensation is claimed; (2) a factual statement identifying
employment factors alleged to have caused or contributed to the presence or
occurrence of the disease or condition; and (3) medical evidence
establishing that the diagnosed condition is causally related to the employment
factors identified by the claimant.
ANALYSIS
The employee filed two claims
for compensation in this case, based on specific incidents from 2001. He
identified a February 21, 2001 inspection of a waste treatment plant as
well as the period November 19 to 23, 2001 when he worked at the WTC
site. The employee alleged that he was exposed to various chemicals during the
inspection and to asbestos and other substances at the WTC site. A January 29,
2007 statement of accepted facts indicated that the employee was exposed to
dioxin, mercury, HCL and toxic ash during the February 21, 2001
inspection. Regarding the WTC exposure, the Office accepted that the employee
was exposed to asbestos levels from .006 to .230 and was exposed to building
materials and various metals. The initial claim in 2002 was for a respiratory
injury while the 2005 claim was for colon cancer.
An Office hearing
representative found that there was a conflict in the medical evidence under 5
U.S.C. § 8123(a) on the issue of whether there was an injury causally
related to the employment incidents. The employee submitted
medical reports from Drs. Teitelbaum, Korenyi-Both and Martin regarding causal
relationship. Dr. Teitelbaum found an occupational asthma, as well as the
colon cancer, causally related to the employment exposure. Dr. Martin
found an impaired lung function resulting from the employment exposure, and
Dr. Korenyi-Both opined that the colon cancer developed after exposure to
toxic dust at the WTC site. On the other hand, second opinion physician,
Dr. Gray, opined that the colon cancer was not employment related. Second
opinion physician Dr. Phillips also found no causal relationship between
the colon cancer and the employment exposure.
On the issue of causal relationship between the diagnosed colon cancer
and the identified employment factors, there was a conflict under 5 U.S.C.
§ 8123(a). The Board notes that although the Office hearing
representative appeared to find a conflict with regard to a respiratory
condition, neither Dr. Gray nor Dr. Phillips had offered an opinion
on this issue. There was no conflict. Therefore, the referral to
pulmonologist, Dr. Beller, was as a second opinion physician.
With respect to the colon
cancer claming the question is whether Dr. Perry, the referee physician,
properly resolved the conflict. The Board finds that Dr. Perry did not
provide an unequivocal, rationalized medical opinion on the issue presented. Dr. Perry
stated that it was unlikely a visible tumor was missed by the 2001 colonoscopy,
without fully explaining how this related to the issue of causal relationship.
He then stated, “While there is an interaction between mutagen exposure and
genetic constitution at this time we cannot tell whether his exposures
contributed in any way to the development of his colon cancer.” This equivocal
statement does not constitute a rationalized medical opinion. While Dr. Perry
noted a positive family history for cancer and the lack of an oncology literature
establishing asbestos as a carcinogen for colon cancer, he did not clearly
state whether appellant’s colon cancer was causally related to the accepted
employment exposures. The second opinion physician Dr. Gray, for example,
had noted the family history but he stated that he did not believe it was a
factor in the employee’s cancer. If Dr. Perry felt the family history or
other factors were important to the causal relationship issue then he must
provide some explanation. He did not have provide an opinion of reasonable
medical certainty. To resolve the conflict, however, Dr. Perry must
provide a clearly stated opinion that is supported by medical rationale. The
case will be remanded to the Office to request clarification from Dr. Perry.
It should secure a rationalized medical opinion on the causal relationship
between the employee’s colon cancer and the identified employment factors.
After such further development as the Office deems necessary, it should issue
an appropriate decision.
As to the claim for a
respiratory condition, the Board finds the weight of the evidence was
represented by Dr. Beller. Dr. Martin had described what he felt was
a lung dysfunction, without providing a clear diagnosis or a rationalized
medical opinion. Dr. Teitelbaum referred to occupational asthma in his
November 2, 2006 report, without discussing in detail the relevant medical
history regarding a diagnosed asthma condition. He referred to both an
aggravation of preexisting asthma as well a new occupational asthma, without
clearly explaining his opinion on causal relationship with employment. Dr. Teitelbaum
did not provide a rationalized medical opinion based on a complete background.
The second opinion physician, Dr. Beller, provided a medical opinion with
supporting medical rationale. He explained that asbestos required a long
exposure period, found the decrease in lung function to clinically
insignificant and found no diagnosed respiratory condition was causally related
to the employment exposures. Dr. Beller’s report therefore represents the
weight of the evidence on this issue.
CONCLUSION
The case will be remanded to
the Office to properly resolve the conflict in the medical evidence on the
issue on causal relationship between the employee’s colon cancer and federal
employment. The evidence of record does not establish a respiratory condition
causally related to the identified employment exposures.
ORDER
IT
IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation
Programs dated August 30, 2007 is set aside on the issue of causal
relationship between colon cancer and federal employment and remanded for
further action consistent with this decision of the Board. The August 30,
2007 decision is affirmed with respect to a respiratory condition.
Issued: November 4, 2008
Washington, DC
Alec
J. Koromilas, Chief Judge
Employees’
Compensation Appeals Board
Michael
E. Groom, Alternate Judge
Employees’
Compensation Appeals Board
James
A. Haynes, Alternate Judge
Employees’
Compensation Appeals Board